Covid19 lockdown: Protecting constitutional rights during a crisis

On 14th March 2020, Prime Minister Narendra Modi announced the extension of the nationwide lockdown till 3rd May, 2020 in a bid to contain the spread of Covid-19. Immense hardship which has been caused and which will continue be caused due to the drastic measure has been justified as a necessary evil; something which must be put up with if lives are to be saved. Nevertheless, one is tempted to ask, would the lockdown withstand judicial scrutiny if challenged in a constitutional court, given that severe restrictions have been imposed on the rights of the citizens, no matter how laudable the motive and crisis-like the situation might be? The answer, as it turns out, is not easy.

A crisis is not an excuse for a carte blanche

At the outset, it must be stated that the fundamental rights, enshrined in Part III of the Constitution are not absolute. In certain circumstances, the State can temporarily curtail or even suspend the rights of the citizens. The outbreak of Covid-19 may be one such circumstance where some amount of personal freedom may have to be sacrificed at the altar of public welfare according to the maxim “Salus populi suprema lex” which means welfare of the people is the supreme law. But the extent to which the State can encroach upon rights of the citizens is debatable. However, in some rare cases, courts have attempted to admirably strike a balance between the rights of the citizens and the might of the state, even in times of exigencies and distress, such as war, natural disasters and other calamities. In such circumstances, prompt action and relief measures may be the need of the hour which might temporarily necessitate the concentration of an abnormally large amount of power in the hands of the authorities. But as the custodian of the people’s rights, the courts have rightly held that no crisis can serve as a licence for a carte blanche which is the very antithesis of a fair and rule of law society.

One of the earliest and most controversial decisions which dealt with such a scenario is Ex parte Merryman [17 F. Cas. 144 (1861)]  in which the Chief Justice of U.S. Supreme Court, Roger B. Taney held that President has no power to suspend the writ of habeas corpus even during a civil war. Only the U.S. Congress has such a power which cannot be usurped by the President. The judgment given by Justice Roger Taney is of doubtful precedential value, and most importantly was ignored by President Lincoln, but the essence of the decision is that the court can order a detenue’s release by issuing the writ of habeas corpus if it finds out that he has been unlawfully detained since such detention amounts to a violation of a person’s right to personal liberty, a right which cannot be taken away even in times of tumult, turmoil or danger.

In India, the position is somewhat similar. The 44th Amendment to the Constitution of India has affirmed that Article 21, i.e. the right to life and personal liberty as well as Article 22 which ensures protection against arrest and detention in certain cases cannot be suspended during an emergency. This amendment came just one year after Justice Khanna’s famous dissenting judgment in A.D.M. Jabalpur v. Shivkanth Shukla [AIR 1976 SC 1207], in which he held that the power to issue writs of habeas corpus cannot be taken away by any authority under the Constitution, even during an emergency. Even otherwise, it must be noted that as of now, there is no constitutional emergency in the country. According to Article 352 of the Constitution, the president has the power to proclaim such an emergency only if he is satisfied that there is a threat to the security of India or any part of it on account of war, external aggression, or armed rebellion. Article 359 states that in such cases the President may by order, suspend the right of the citizens to approach the courts for the enforcement of any fundamental right except Articles 21 and 22. However, since no such emergency has been proclaimed by the President, the right of the citizens to approach the constitutional courts for enforcement of their fundamental rights is unaffected.

The most useful case in this regard is Henning Jacobson v. Commonwealth of Massachusetts [197 U.S. 11] which was delivered at a time when the United States was under the grip of the small pox disease in 1905. Though the United States Supreme Court  upheld mandatory vaccination, the court warned that some restrictions could be “so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.” The court added that “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Thus, the rule of law must prevail even during a health emergency such as the Covid-19 pandemic.

A tale of two tests

So how is a court to determine whether governmental action is unlawfully invasive of civilian rights? According to American jurisprudence, statutes which allegedly infringe the Bill of Rights, the American counterpart of our fundamental rights, have to pass the strict scrutiny test which was borrowed by the Supreme Court of India in Subhash Chandra v. Delhi Subordinate Services Selection Board [(2009) 15 SCC 458]. According to this test, the court will strike down the law unless the government can demonstrate in court that a law or regulation:

1. Is justified by a compelling state interest. Broadly, it can be said that something that is necessary or crucial rather than something which is merely preferred would qualify as a compelling state interest e.g. national security or saving the lives of a large number of individuals.

2. The law or policy has been narrowly tailored to achieve that goal or interest. This means that the means chosen to accomplish the government's asserted purpose must be specifically and narrowly framed to accomplish that purpose. Thus, if the government action encompasses too much or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.

3. The law or policy must be the least restrictive means for achieving that interest i.e. there must not be a less restrictive way to effectively achieve the compelling government interest.

However, nearly a decade later, the Strict Scrutiny Test was done away and the Supreme Court came up with a new test called to the proportionality test to determine the permissibility of restrictions imposed on fundamental rights.  According to this test, the nature and extent of the State’s interference with the exercise of a right must be proportionate to the goal it seeks to achieve. In  K. T. Puttuswamy v. Union of India [(2019) 1 SCC 1] the Supreme Court of India held that while determining whether the violation of fundamental rights is justified or not, it will consider the following aspects:

1. A measure restricting a right must have a legitimate goal (legitimate goal stage).
2. It must be a suitable means of furthering this goal (suitability or rationale connection stage).
3. There must not be any less restrictive but equally effective alternative (necessity stage).
4. The measure must not have a disproportionate impact on the right holder (balancing stage).

Thus unlike the Strict Scrutiny Test which does not take explicitly take into account the impact of State action but focuses more on the means adopted in furtherance of the objective to be achieved, the Proportionality Test also makes it necessary for the assailed measure to not have a disproportionate impact on the holder of the rights. More recently, the Supreme Court in Anuradha Bhasin v. Union of India [Writ Petition (Civil) No. 1031 of 2019] aptly summarized the proportionality test by quoting the words of Lord Diplock “You must not use a steam hammer to crack a nut, if a nutcracker would do”.

A defeat in victory

So what does all this mean in the present context? The lockdown satisfies the first requirement of the proportionality test. It is the duty of the government to contain the spread of Covid-19 which is certainly a legitimate goal. As scientists have pointed out, breaking the chain of transmission of Covid-19 by enforcing social distancing is the most effective method to combat the spread of the pandemic. It is during the second and third prongs of the test that things become a little iffy. It is dubious whether a lockdown is a solution in itself when it comes to containing the spread of the disease. As has been stated by the director of the World Health Organisation, at best it is a temporary measure to buy time and reduce the pressure on the public health system. Moreover, countries such as South Korea, Taiwan and Hong Kong have deftly handled the crisis without enforcing a total lockdown by implementing sensible measures such as early adoption of masks, rationing of important supplies such as hand-sanitizers and mass testing, though it is undoubtedly true that the conditions are vastly different in India as compared to the above-mentioned countries.

It is last point of the four-fold proportionality test which is the most worrisome. Not only lockdown has had disastrous effects on the economy, but it left thousands of on the streets without any food, shelter or means of livelihood, exposed to the deadly virus. Migrant workers were unable to return to their native places. A possibility of food shortage looms in the air as farmers were unable to sell their produce. The worst-hit were the poor and weaker sections of the society who, deprived of their wages, were unable to buy the most basic of commodities. Thus, it is beyond the pale of any doubt, that the government’s move was grossly disproportionate.

It is now settled law that the word “life” in Article 21 does not refer to mere animal existence. It includes the right to shelter, livelihood, wages, food and everything that is needed for a person to live with dignity. Yet, with one hasty, ill-thought and impetuous move, every one of these rights was thrown to the wind. And with the total number of Covid-19 positive cases increasing by the day, even the efficacy of the move is coming under doubt.

However, when all is said and done, it is unlikely that the lockdown could have been successfully challenged in a constitutional court. As the saying goes, “Necessity knows no law”. It is no secret that the Indian judiciary has shown considerable restraint and a deferential attitude towards the legislature and the executive in recent times. And given that a health emergency is prevailing in the country, the courts would be all the more reluctant to interfere in matters which not only require technical expertise but can have enormous ramifications throughout the country. No judge would want to be called a meddlesome interloper who obstructs the working of the government when it is trying to save lives. As the U.S. Supreme Court explained in Boumediene v. Bush, “neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.”

On March 23, just one day before the Prime Minister announced the nation-wide lockdown, the President of the United States, Mr. Donald Trump had tweeted “We cannot let the cure be worse than the problem itself.” Notwithstanding his other misgivings, it would appear that Mr. Trump was right this time.